Golden Dale T/A Ballydoyle Racing (Represented by Mr Paul Gallagher S.C. Instructed by Arthur Cox Solicitors) v Workplace Relations Commission (Represented by Mr Noel Travers S.C. Instructed by Leahy & Partners Solicitors)

• Jurisdiction: Ireland
• Judgment Date: 05 January 2018
• Judgment citation (vLex): [2018] 1 JIEC 0501
• Docket Number: FULL RECOMMENDATION,DETERMINATION NO.CNN181,CN No: 000094/95/96/97
• Court: Labour Court (Ireland)
• Date: 05 January 2018

Labour Court (Ireland)

FULL RECOMMENDATION

CN/17/2

DETERMINATION NO.CNN181

CN No: 000094/95/96/97

PARTIES:

Golden Dale T/A Ballydoyle Racing (Represented by Mr Paul Gallagher S.C. Instructed by Arthur Cox Solicitors)

and

Workplace Relations Commission (Represented by Mr Noel Travers S.C. Instructed by Leahy & Partners Solicitors)

DIVISION:

Chairman: Mr Haugh

Employer Member: Ms Doyle

Worker Member: Mr Shanahan

SECTION 28 (7), APPEAL OF COMPLIANCE NOTICE

SUBJECT:

1 1. Appeal of Compliance Notice Reference No.CN 000094/95/96/97 issued by Workplace Relations Commission Inspector.

BACKGROUND:

2 2. A Workplace Relations Commission Inspector issued Compliance Notices on the 20 February 2017. The Employer appealed the Compliance Notices to the Labour Court on the 27 March 2017. Labour Court hearings took place on the 26 July and 28 and 29 August 2017. The following is the Court's Determination:

DETERMINATION:

Background to the Appeal

3 This is an appeal brought by Golden Dale Unlimited Company T/A Ballydoyle Racing (“the Appellant”), pursuant to section 28(7) of the Workplace Relations Act 2015 (“the 2015 Act”), against four compliance notices served on the Appellant by a Workplace Relations Commission inspector on 20 February 2017. The Appellant's Notice of Appeal was received by the Court on 28 March 2017. The Court heard the appeal over three full days: 26 July 2017, 28 and 29 August 2017. The Court also convened a case management conference on 21 August 2017.

4 Section 28(1) of the 2015 Act provides: “(1) Where an inspector is satisfied that an employer has, in relation to any of his or her employees, contravened a provision to which this section applies, the inspector may serve a notice (in this section referred to as a “compliance notice”) on the employer.” Section 28(17) states that Section 28 applies to those provisions specified in column (3) of Schedule 4 (of the 2015 Act). The provisions in question include the following sections of the Organisation of Working Time Act 1997 (“the 1997 Act”): sections 6(2), 11, 12, 13, 14(1), 15(1), 16(2), 17, 18, 19(1), 19(1A), 21, 22 and 23(1) and (2). Each of the four compliance notices under appeal in the within proceedings notified the Appellant of breaches of either section 11 or section 13 of the 1997 Act that the inspector was satisfied had occurred in respect of a number of named employees on stated dates in May 2016. In total, seven of the Appellant's employees are named in the compliance notices under appeal. Five of those employees are grooms and two are exercise riders.

5 The detail of the breaches of the 1997 Act that the inspector took the view had occurred in May 2016 in the case of the named employees of the Appellant can be summarised as follows:

• (a) A failure to grant a daily rest period of eleven hours to three named employees on stated dates in May 2016, as required by section 11 of the 1997 Act;

(b) A failure to grant three named employees a weekly rest period of 24 consecutive hours in each of four consecutive weeks in May 2016, in breach of section 13(2) of the 1997 Act;

(c) A failure to grant four named employees two rest periods of at least 24 consecutive hours each in a week following a week in which they hadn't received a single weekly rest period of 24 consecutive hours, in contravention of section 13(3) of the 1997 Act; and

(d) A failure to grant four named employees a weekly rest period that includes a Sunday in any of four specified weeks in May 2016, in contravention of section 13(5) of the 1997 Act.

6 The inspector formed his opinion that the aforementioned breaches had occurred having examined working time records prepared, and submitted to him, on behalf of the Appellant. It is admitted on behalf of the Appellant that the alleged breaches identified in the compliance notices would have occurred save for the fact that the Appellant is exempt from both section 11 and section 13 of the 1997 Act having regard to Regulation 3 of the Organisation of Working Time (General Exemptions) Regulations 1998 — S.I. 21 of 1998 (“the Regulations”).

7 Regulation 3 of the Regulations provides:

• “(1) Without prejudice to Regulations 4 and 5 of these Regulations and subject to the subsequent provisions of this Regulation, each of the activities specified in the Schedule to these Regulations is hereby exempted from the application of sections 11, 12, 13 and 16 of the Act.

(2) The exemption shall not, as respects a particular employee, apply in relation to—

○ (a) section 11, 12, 13 or 16 of the Act if the employee—

▪ (i) is not engaged wholly or mainly in carrying on or performing the duties of the activity concerned,

(ii) is exempted from the application of that section by virtue of regulations under section 3(3) of the Act, or

(iii) falls within a class of employee in relation to which a joint labour committee (within the meaning of the Industrial Relations Acts 1946 to 2015) may perform functions under those Acts,

○ or

○ (b) section 16 of the Act if the employee is a special category night worker within the meaning of subsection (3) of the said section 16.

(3) The exemption shall not apply, as respects a particular employee, if and for so long as the employer does not comply with Regulation 5 of these Regulations in relation to him or her.”

8 Paragraph 3 of the Schedule to the Regulations lists the following as exempted activities:

9 “ An activity falling within a sector of the economy or in the public service—

• (a) in which it is foreseeable that the rate at which production or the provision of services as the case may be, takes place will vary significantly from time to time,

or

(b) the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, as the case may be,

and, in particular, any of the following activities—

○ (i) the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment,

(ii) the provision of services at a harbour or airport,

(iii) production in the press, radio, television, cinematographic, postal or telecommunications industries,

(iv) the provision of ambulance, fire and civil protection services,

(v) the production, transmission or distribution of gas, water or electricity,

(vi) the collection of household refuse or the operation of an incineration plant,

(vii) any industrial activity in which work cannot, by reason of considerations of a technical nature, be interrupted,

(viii) research and development,

(ix) agriculture,

(x) tourism,

(xi) workers concerned with the carriage of passengers on regular urban transport services,

(xii) in the case of persons working in railway transport—

▪ (I) whose activities are intermittent;

(II) who spend their working time on board trains; or

(III) whose activities are linked to transport timetables and to ensuring the continuity and regularity of traffic.

10 It is submitted on behalf of the Appellant that, having regard to the Regulations, it is exempt, inter alia, from sections 11 and 13 of the Act of 1997 for the following reasons:

(i) The business carried on by the Appellant comprises activities that are properly described as agriculture within the meaning of paragraph 3(ix) of the Schedule to the Regulations;

(ii) The nature of the activities that comprise the Appellant's business is such that employees (grooms and exercise riders) named in the compliance notices under appeal are directly involved in ensuring the continuity of production and, therefore, come within the terms of Paragraph 3(b) of the Schedule to the Regulations; and

(iii) That the activities carried on by the Appellant are activities in which it is foreseeable that the rate of production takes place will vary significantly from time to time.

Witnesses

11 Mr Patrick Phelan, the WRC inspector who served the compliance notices on the Appellant, gave evidence on behalf of the Workplace Relations Commission. The Appellant called the following witnesses: Mr Tony O'Keeffe, Engineer; Mr Des Leadon, Veterinary Surgeon and Consultant Clinician; Mr Matt Dempsey, Chairman of the National Stud and Chairman of the Farmers Journal; Professor Evans, Professor of Agriculture in UCD; Mr Clem Murphy, Bloodstock Consultant at Coolmore Stud; Mr Robbie Manton, employed by the Appellant as Groom and Head of Yard (and one of the named employees in a number of the compliance notices under appeal); Mr Tom Curtis, a consultant to the Appellant; Mr Aidan O'Brien, Racehorse Trainer; Mr Craig Bryson, employed by the Appellant as an Exercise Rider. The Appellant furnished detailed written witness statements on behalf of the latter five witnesses (only), which witness statements were confirmed by each of the witnesses concerned as their evidence to the Court.

The Issues for Determination by the Court

12 Having regard to the extensive evidence and the comprehensive legal submissions received by it over three full hearing days, the Court considers that the issues that fall to be determined by it in this appeal can be usefully considered in the following order:

• 1. Are the compliance notices served on the Appellant ‘defective’ such that the Court is obliged to order them to be withdrawn?

2. Is section 28 of the Workplace Relations Act 2015 a criminal provision that the Court is obliged to construe strictly as such?

3. Can the Appellant rely (i) on the continuity of production exemption in the Regulations having regard to its being a component in the Coolmore-Ballydoyle wider operation, the objective of which is the breeding of thoroughbred stallions and brood-mares; and/or (ii) on the ‘agriculture’ exemption for the purposes of Paragraph 3 of the Schedule to the Regulations; and/or (iii) on the variation in production exemption?

4. If the Appellant's operation is deemed to be within scope of the one or more of the exemptions in...